Little v. Gibson

Fowler, J. In Rich v. Flanders (ante page 304), the question of the constitutionality of the act of June 25, 1858, in its application to pending suits, by making the parties thereto competent witnesses on the trial thereof, was fully considered by the court, and decided in the affirmative. A portion of the opinion of the member of the court to whom this case had been assigned, and which had been prepared for its decision, coinciding with the views of the majority, will be found in the report of that case. In our judgment, the act of June 25, 1858, makes the parties to pending suits, not excepted from its operation, competent witnesses on the trial thereof, and in so doing is not unconstitutional as being retrospective, within the prohibition of the 23d article of the Bill of Rights, inasmuch as it establishes ho new rule for the decision of those causes, and violates no vested rights of the parties thereto, but is a mere regulation of the proceeding for enforcing remedies, by prescribing a rule for the admission of existing evidence therein — an exercise of the acknowledged powers of every government. [510] At common law — and we have no statute in. this State upon the subject — persons convicted of treason, felony, and every species of the crimen falsi, are incompetent to testify as witnesses, by reason of their infamy. Thus a conviction for forgery will disqualify, as will also a conviction of any offence tending to pervert the administration of justice by falsehood or fraud. Of this nature are perjury, and subornation of perjury; attaint of false verdict; bribing a witness to absent himself, in order that he may not give evidence; conspiring to procure the absence of a witness ; conspiring to accuse another person of a capital offence; barratry, and other crimes of a like character. 1 Phill. Ev., 14; 1 Gr. Ev., sec. 373; Whart. Com. Law 354. The extent and meaning of the term' crimen falsi, are no where defined with any considerable degree of precision, but from an examination of the various decisions touching the matter, it may be deduced that the crimen falsi of the common law not only involves the charge of falsehood, but is any offence which may injuriously affect the administotion of justice, by the introduction of falsehood and fraud. Whart. Or. Law 854, and authorities. We have been unable to find any decision holding adultery to be one of those offences, conviction for which renders a person infamous; it works no forfeiture of goods or lands, and therefore is not a felony; and notwithstanding the forcible and ingenious argument of the demand-ants’ counsel, we are of opinion that it does not come within any of the classes of crime recognized by the common law as crimena falsi. The testimony of Alpheus Currier was clearly competent to rebut the demandants’ evidence tending to prove that the .deed from Mrs. Webster had never been delivered, as it went directly to show that deed in the possession of one of the grantees not long after its date. The declarations of Sarah Webster seem to us to have been admissible on both the grounds taken by the counsel [511] for the tenant, as declai’ations of the ancestor of.the demandants, under whom they claimed title as heirs, made while she was in possession of all the rights claimed through her, and as tending strongly to rebut the evidence offered by the demandants to show that the deed from her to Mrs. G-ibson and Mrs. Heath had been fraudulently procured and never delivered. 2 Phill. Ev. (Cow. & Hill’s Notes) 646—656, and authorities; Smith v. Powers, 15 N. H. 563; Pike v. Hayes, 14 N. H. 17; Hobbes v. Cram, 22 N. H. 150. It is unnecessary now to decide whether both the demandants could be competent witnesses under the statute, since the verdict was against their testimony. All the objections thereto, raised by the demandants, being overruled, there must be • Judgment upon the verdict.